A regulamentação do art. 5º da lei nº. 11.105/05 à luz da teoria pura do direito e do neoconstitucionalismo.

Abstract

This work approaches the regulation of Embryo Stem Cell in accordance with the vision of the Pure Theory of Right and New constitutionalism. Thus, the problematic of the present search show the recital of the constitutionality and interpretation of Law n°. 11.105/05 based on principles and its apparent conflict, when attributed to normative value in the specific case. The objective happens in approaching the theories and important opinions of chain of thought in relation to the problem displayed. Thus, the justification of this work is the present time of the subject analyzed and the raised implications, that provides in the biomedical and legal context, beyond the significance attributed to the basic rights while base of principles next to the recital of the constitutionality of a legal device. In the displayed intention adopted the deductive method and the technique of bibliographical research. In relation to the questioning constitutionality of Law n°. 11.105/05 was observed the problematic in accordance with positivism chain, mainly in relation to the thought of Kelsen, which establishes the preservation of the constitutionality of the law in virtue of idea of the Hierarchic Normative Pyramid not being allowed preceding for appreciation of constitutional interpretation, nor the interpretation on the basis of principles. On the other hand, concludes that the agreement after-positivism is adjusted for the evaluation of the specific case because demonstrates ample admission of the constitutional principles, attributing them to the platform of the norms and legal rules. This opinion was shared by the Supreme Federal Court in its deliberation.